Legal Commentary

Lots of commentary out there about the Supreme Court's Download Perry-order-opinion staying the effort by District Judge Vaughn Walker of the Northern District of California to have limited video broadcasts (live-streaming in five federal courthouses and recorded for posting to YouTube) of the trial challenging California's Proposition 8. In no particular order: Dahlia Lithwick of Slate, Emily Bazelon of Slate, Jonathan Siegel, Orin Kerr, Barry Friedman, and Tony Mauro.

My several cents after the jump.

First, I agree with Siegel that the majority's basic ruling and rationale were at least arguably correct, at least as a formalist matter. The district court really gave only about a week for notice and comment on the formal proposed rule (after first announcing a new role, then changing it to a proposal) and this is not a subject that falls into the "immediate need" exception to notice-and-comment requirements in § 2071(e). True, Judge Walker received more than 130,000 comments (overwhelmingly favorable) even in that short time. And everyone involved in, and watching, the case should have been aware of a) the Ninth Circuit's pilot program on recording proceedings and b) Judge Walker's statements to the parties back in September that he was considering broadcasting the proceedings. The Court also inappropriately criticized the court for issuing and reissuing web site postings and press releases, comparing that unfavorably with what Congress did back in 1995 to arrange for broadcast of the Oklahoma City bombing prosecutions. But notice-and-comment for local rules is never as formal as congressional lawmaking and the Court should know that.

But there is a sense that the district court was not entirely clear on what it had to do procedurally and seemed to be winging it; the majority accused it of changing its rules at the eleventh hour and treating this case differently. Thus, the majority (arguably a bit high-handedly) insisted that intervention was warranted to preserve systematic interests of "insisting that courts comply with the law, [thereby] vindicat[ing] not only the rights they assert but also the law's own insistence on neutrality and fidelity to principle." If nothing else, I was able to point this opinion to my Civ Pro students as an example in which local rules of procedure (and the process of making procedural rules) actually makes headlines.

Second, several commentators (as well as the dissent) have suggested that the majority reached out to decide a matter--local judicial administration--that is not its concern. This has triggered (for some) reminders of Bush v. Gore--because of the Court reaching out for a case, because of the ideological 5-4 split on the Court, and because in both cases, the Court was jumping in to enforce procedural formalism in the face of a perceived attempt by an inferior court to play too loose (or too practically) with procedural requirements.

Third, the purpose of the stay was to give Prop 8 supporters a chance to get the case before the Court, either on cert or mandamus. But it is difficult to imagine what the Court would decide on the merits. Perhaps a more detailed determination that the local rule change violated § 2071 and that the court must do it over again. It would be strange for the Court to rule, in this context, on the substantive validity or propriety of having cameras in the lower courts. Lower courts have statutory authority to make their own rules and policies, which only must be consistent with the Constitution, federal law, and the SCOTUS-enacted Federal Rules of Civil Procedure. I suppose the Court could enacted an FRCP (and FRAP) banning or setting narrow and precise standards for cameras--and any local rule must conform to that. But short of that, SCOTUS has no control over lower courts in making policy decisions such as these.

Of course, the majority strongly hinted in that direction, insisting that, procedural rules aside, this case is not a good one for the Ninth Circuit's camera pilot program, because it is a high-profile case involving "issues subject to intense debate in our society." The majority has been (rightly) lambasted for this assertion. After all, the suggestion seems to be that publicizing trial might be a good idea for informing the public about legal proceedings, except when the public actually cares about those proceedings. By all means, televise the diversity property-damage traffic accident, but not the case (and the legal, factual, and social-scientific evidence and arguments) that may edcuate the public and help decide fundamental political-social issues. That substantive view undergirds the procedural decision.

To the extent the merits of cameras now are in play, the issue long has interested me (during law school, I initially planned to write my journal comment on the subject, during the heart of the O.J. Simpson case). I never have understood the tremendous objection to, or fear of, video in courtroom proceedings, especially in light of the tremendous media (and blog) reporting that is going on anyway. A study conducted in 1998 (and cited in the dissenting opinion) found that video cameras actually improved the quality of witness testimony (probably for many of the reasons many argue for video-recording of interrogations). And it is hard to imagine small, unobtrusive cameras (functioning, utlimately, as three additional eyes in the gallery) being that distracting.

Moreover, everything that happens at the trial--including the identities of Prop 8 supporters and the content of their testimony and argument--is going to be reported and presented to the public anyway. But it all will be presented to the public through the filter of reporters (or through multiple filters, since many people will read the excerpts of the excerpts on an aggregation/commentary blog), rather than members of the public being able to hear and process the complete testimony or argument first-hand, if they choose. Barring cameras ultimately only empowers the institutional media (broadly defined), which gets to decide what portions of the trial the public can see and hear. As Lithwick argues, this is inconsistent with the insistence that the public should be able to decide the issue of same-sex marriage because it prevents the public from truly seeing and absorbing the information on which it can decide. Indeed, one of the benefits to airing such arguments at trial is that, given the restrictions of the Rules of Evidence limit demagogic arguments and other noise from all sides.

The threat (to the extent there is one) to the "sanctity" of judicial proceedings from media coverage is not live video, but 24/7 reportage, commentary, punditry, and general hysteria--what I have called "the media horde." It also comes from lawyers speaking and making their case to the public directly on the courthouse steps, because they can't do it inside. So we obviously can (and do) get all that noise without live broadcasting and it is hard to imagine that including cameras would make the problem worse--and might make it better.

Similarly, if pro-Prop 8 witnesses truly fear for their safety (a dubious proposition, since most of these people have been publicly appearing and speaking about this for months or years), that safety is just as endangered by their names (and photographs) being reported in The New York Times or CNN or the Huffington Post. In other words, barring video cameras is under-inclusive for handling the problem of witness intimidation or fear. To truly protect witnesses, the media would have to be barred from the courtroom, the witness permitted to testify anonymously (almost unheard of, particularly in a civil case), and/or his testimony sealed. No one has (or, I imagine, would) seriously suggest any of those steps is necessary or appropriate. The point is that broadcasting itself does not create additional problems beyond media coverage itself.

Stay tuned (no pun intended).